Wilton v. Middlesex R. Co.

• Decision Date: 29 July 1878
• Citation: 125 Mass. 130
• Parties: William Wilton v. Middlesex Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 130

William Wilton v. Middlesex Railroad Company

Supreme Court of Massachusetts

July 29, 1878

[Syllabus Material]

Suffolk. Tort for loss of services of Ellen Wilton, a daughter of the plaintiff, occasioned by her being run over by one of the defendant's cars on July 16, 1868. Writ dated June 22 1874.

At the trial in the Superior Court, without a jury, before Pitman J., it appeared that Ellen Wilton had, in the name of her father as next friend, brought an action against the defendant, and recovered $ 5000 for the injuries done her by this accident. 107 Mass. 108. It also appeared that there had been a guardian appointed by the court, who had paid the plaintiff four dollars a week under the order of the court and had provided some clothing for Ellen.

Evidence was offered tending to show that the defendant, after diligent search, had never been able to find any person who saw the accident, or any driver who drove the car on which the accident is alleged to have occurred. All the evidence as to the accident was that introduced by the plaintiff, and was as follows:

Ellen Wilton testified: "I am twenty-one years and two months old. I met with an accident on the railroad on Charlestown Bridge on July 16, 1868; I was twelve years and seven months old at that time; four of us girls were going over Charlestown Bridge, and a Charlestown Neck car was going over slowly; on its side was painted 'Middlesex R. R.' The driver called us on; he said, 'Come on, girls, and have a ride.' They all got on, and I was getting on; had one foot on, when the driver slapped his horses with the reins, and I hallooed to him to stop half a dozen times, but he paid no attention; then I fell off or was jerked off. The horses started on a gallop when the driver slapped them. I got on the front of the car; the other girls got on front; I had one hand on one iron on the side, and one on the other, and one foot on one step; I was dragged on the ground five or six yards; I was hallooing to him to stop, and he did n't; the wheel went over my arm."

Ellen Dempsey testified: "I was present when Ellen Wilton got on the car; I was thirteen years old at the time; four of us were standing on the curbstone of the old draw; a car came along; the driver told us to hop on or get on; Ellen was barely on the car, had one foot on; I do not believe the driver knew any of us; the car was going slowly when we got on; no one was on front but the driver; we did not attempt to go into the car; in the middle of the draw the driver slapped the horses; they gave a gallop, and Ellen was thrown forward off the car; when she fell I hopped off; she was picked up; the driver drove off like everything; the car had gone over her arm." On cross-examination, she testified: "I could have gone behind the driver; there was nothing to prevent Ellen from getting farther, except that she had not time to do so; before we got off the draw, Ellen fell off."

This was all the evidence in the case as to the accident; and the defendant contended that the plaintiff had not made out a case, and asked the judge to rule as follows:

"1. Upon all the evidence, there has been shown such a want of due care on the part of Ellen Wilton that the plaintiff cannot recover.

"2. From the evidence, it appears that it was the intention of both Ellen Wilton and the driver that she was to ride upon the car without paying her passage, and the defendant therefore was not a common carrier as to this plaintiff.

"3. On the question of damages, if the plaintiff has...